About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 230
|
|
Williams v Isaacs (24968/2014) [2014] ZAGPPHC 230 (9 April 2014)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 24968/2014
In
the matter between:
BRIDGET
SYBIL
WILLIAMS
Applicant
and
MALCOLM
ISAACS Respondent
JUDGMENT
MATOJANE,
J
[1]
The Applicant seeks a
mandament van
spolie
against Respondent on the
grounds that the Respondent unlawfully deprived the Applicant of her
access to water supply to the property
in which she resides.
[2]
The Applicant alleges in her founding affidavit that on 12 February
2012, she entered into an agreement of lease with the Respondent
whereby she rented the property she resides in. She never
received a copy of the lease agreement from the Respondent despite
repeated requests. In terms of the agreement, Respondent was
obliged to render to her an account for rent, water and electricity,
alternatively to put her in a position to apply for an account for
services from the municipality. Respondent failed to put
her in
such position and failed to provide proof that the account for the
property was paid up before she took occupation of the
premises and
further failed to provide her with a monthly account specifying the
portion of water and electricity.
[3]
During October 2013 and December 2013 she was presented with water
accounts in the name of the Respondent in the amounts of
R22 797.00
and R39 658.00 respectively. The arrear amounts were claimed
from her. The Respondent then caused the pre-paid
meter
facility to be installed without informing Applicant and caused the
pre-paid meter to be loaded with a debit amount
of R3 000.00 with the
result that Applicant would first have to settle the debt if she
wanted to buy water.
[4]
The water was disconnected on 26 February 2014 for non-payment.
The Respondent submitted in
limine
that as the City of Johannesburg Municipality disconnected
Applicant’s access to water, Applicant’s failure to join
the municipality has amounted to a material non-joinder and/or
misjoinder in this application. In the alternative, the
Respondent
submitted that in terms of the lease agreement, Applicant
was responsible for the payment of all charges for water and
electricity
to the municipality and accordingly the Respondent was
not liable for the interruption of water and electricity supplies to
the
leased property.
[5]
It is common cause that Applicant does not have an account for this
property with the municipality and that the account for
rates and
taxes is in the name of the Respondent who is liable for the account.
It follows, in my view, that the municipality does
not have a direct
and substantial interest in the order sought by Applicant as the
relief is based on the lease agreement between
the parties. The
point in
limine
is accordingly dismissed, as there is no
lis
between Applicant and the municipality.
[6]
In order to obtain an order for
mandament
van spolie
Applicant must show that she
was in peaceful and undisturbed possession of the thing; and that she
was unlawfully deprived of such
possession. See LAWSA vol 27 page 186
par 269. There can be no doubt that the
mandament
van spolie
not only envisaged the
return of possession but also a restoration. The spoliated party by
such remedy is to be put back in the
same position in relation to the
thing spoliated as she was before, with the thing in question in the
same condition. See
Zinman v
Muller
1956 (3) 12.
[7]
Counsel for the Respondent submitted, wrongly in my view, that it is
impossible for the Respondent to restore Plaintiff’s
right to
water as it is the municipality that can reconnect the water supply.
It is not in dispute that Applicant was in
peaceful and
undisturbed possession of access to water on the property. It
is also not in dispute that Respondent caused
a pre-paid meter to be
loaded with the amount of R3 000.00 that he owes to the municipality
and as a result of Respondent’s
failure to pay water charges;
the municipality disconnected the water supply. The Respondent’s
claim in the circumstances
can therefore be properly considered as a
claim for a
mandament van spolie
as Applicant seeks restitution
ante
omnia
which can only be achieved by the
Respondent paying his debt to the municipality. In my view, the
Respondent deliberately
deprived Applicant of her right of to access
water supply in premises.
For
this reason, the following order shall issue:
a.
The Respondent is ordered to restore the status quo ante by
restoring Applicant’s
access to water at 9A Helen Street,
Buccleugh, Johannesburg, Gauteng.
b.
Respondent to pay the costs.
________________________
K E
MATOJANE
JUDGE
OF THE HIGH COURT